An interim legislative committee is deciding what it should do about a last-minute, special session addition giving the Department of Child Services even more control over juvenile justice decisions that judges have historically been entrusted to make.

Hearing about an hour's worth of testimony from both sides Thursday afternoon, the Commission on Courts considered the issue of out-of-state placements of juvenile offenders. The topic was raised in recent appellate decisions and has been the subject of juvenile justice advocates since the 2009 legislative special session.

In the finalized budget bill, Indiana Code Section 31-37-19-3(f) was amended to read, "The [IDCS] is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement is not recommended or approved by the director of the department or the director's designee."

Judges were surprised and not happy with this last-minute addition, particularly because many were still reeling from the sweeping statutory changes entailed in H.E.A. 1001 from the 2008 session that gave the DCS more authority over juvenile justice decisions and shifted some funding from the local level to the state.

This out-of-state placement issue arose Aug. 10 in an Indiana Court of Appeals decision when the judges affirmed a Madison Superior judge's decision to place a juvenile in an Arizona facility over the DCS' objection. While finding that the new statute wasn't yet applicable to this case, the appellate court hinted that the same situation might have a different result if considered again.

With all of that building up in recent months, DCS Director James Payne attended the Commission on Courts meeting and spoke in favor of the change, while a handful of juvenile judges appeared to express their displeasure at how the changes were put in place quickly and without discussion from the judiciary.

Commission chair Sen. Linda Lawson, D-Gary, expressed concern that the issue was tacked into the special session budget that many lawmakers failed to fully review or understand because of the last-minute action.

"I trust my juvenile judges, and I think they do a good job," Lawson told Payne as he sat before the commission and explained his position.

During his testimony, Payne told members that the DCS' main priority is to keep children close to home and "engage families" as much as possible. Out-of-state placement is used as a last resort, and Payne said states throughout the country are reducing the number of juveniles placed out of state. Indiana should do the same because research shows the state has the capacity to keep virtually every child here and offer adequate services, he said.

"Frankly, in my time on the bench, I sent a lot of kids out of state," said Payne, who served for two decades as the Marion Superior juvenile judge. "But in the early 1990s, I concluded that it wasn't the best practice. Keeping children close to home is the best practice ... that's something the state can and should support."

Tippecanoe Superior Juvenile Judge Loretta Rush said judicial discretion being taken away and placed with an executive branch state agency sets Indiana's juvenile justice system backward. She agreed with her colleagues that juveniles should be placed within Indiana if that's possible; however, they disagreed that any out-of-state placement should be reduced to a money-based decision made by a state agency.

"They want to look at pieces of paper to make decisions. Is that the way we want justice to operate for our kids and their families?" St. Joseph Probate Judge Peter Nemeth asked the commission. "For them to sit back and throw darts at a dartboard without knowing the particulars of a juvenile or a family, if there's a family ... it's not the right thing to do. It certainly interferes with judges doing their job."

Court of Appeals Chief Judge John Baker, who was sitting on the commission in the place of Chief Justice Randall Shepard, indicated he hadn't heard any discussion with the judiciary about this being an issue prior to the special session budget bill changing. His observation is that a juvenile placement used to be a judicial decision, but now it's been turned into an executive department decision.

When asked by a senator whether the state agency's authority takes the decision-making function from the juvenile judges, Payne responded by saying that, "Some judges are more attentive to this than others. As a juvenile court judge for some time, I thought I knew a lot. But I've found I didn't know it all."

No decision has been made about how to proceed with this issue, or the other two issues discussed Thursday: potential probation department consolidations and issues pertaining to asbestos-related illnesses.

Michael Hoskins joined Indiana Lawyer in May 2006 and mostly covers the state and federal court systems. He’s received awards from the Indiana Chapter of the Society of Professional Journalists for his work covering the state's juvenile justice system, the federal immigration court system, wrongful conviction issues, and long-running lawsuits regarding prison conditions.

He came from the Daily Journal in Johnson County, where he was a general assignment reporter covering courts and legal issues. Before moving to Indiana in 2004 from southeast Michigan, Hoskins freelanced for the Detroit Free Press and worked for the Spinal Column Newsweekly after graduating with a bachelor’s degree in journalism from Oakland University in 2001. He currently lives in Greenwood with his wife, Susanne, and volunteers with the Juvenile Diabetes Research Foundation.